Page:Harvard Law Review Volume 2.djvu/259

 HARVARD

LAW REVIEW.

VOL II. JANUARY 15, 1889. NO. 6.

A BRIEF SURVEY OF EQUITY JURISDICTION-^

IV.

IT may have occurred to the reader to ask why the jurisdiction exercised by equity over contracts and other obligations is designated as specific performance, since equity always exercises its jurisdiction by compelling performance, and always makes such performance as specific as it is practicable to make it, and

1 Continued from Vol. I., p. 387.

In discussing, in the preceding article (p. 377, n. 2), the effect of an agreement to convey property, in changing the equitable ownership of the property agreed to be conveyed, the writer had his mind entirely upon bilateral agreements for the purchase and sale of property, and it did not occur to him to call attention to the difference, in respect to the question under discussion, between such agreements and a unilateral agreement to convey property. It seems that an agreement of the latter kind, t./., an agreement to convey property already paid for (see Rayner v. Preston, 14 Ch. D. 297, 18 Ch. D. i), would have the effect of changing the equitable ownership of the property immediately, by making the vendor a trustee for the vendee; and, there- fore, any subsequent injury to the property by the act of God would fall upon the vendee. The latnsr has parted with his money, and he has acquired nothing in exchange for it but a right to a conveyance of the property. If the vendor be ready and willing to execute such conveyance in proper form, that is all that the vendee can require of him; and the fact that, since the payment of the money and the making of the agreement, the property has been injured by the act of God will not enable the vendee either to recover back his money, or to recover damages for a breach of the agreement. A bill to compel the per- formance of such an agreement has indeed the characteristics of a bill by a ces^i giu trust against a trustee, rather than of a bill for the specific performance of a contract.